Proclamation No. 216 declaring martial law in Mindanao has recently been circulated in the web and looking at its WHEREAS clauses which serves as justification for the martial law declaration, it appears that such declaration is fatally defective for the following reasons :

1) the Maute stand-off in Marawi City is characterized as a rebellion when apparently it is terrorism

The 3rd and 4th Whereas clause describes the Maute Group as a “terrorist” group and as such the crimes to which they should be charged with is terrorism, which is actually penalized by Republic Act 9372, but the Constitution is explicit in allowing the invocation of the President’s martial law powers only in cases of lawless violence, invasion or rebellion. The wisecracks may point to terrorism as lawless violence, but given that there is a law defining terrorism, terrorism cannot now be easily equated with lawless violence easily, this will most likely not withstand legal scrutiny.

If we go by the cases cited by the great Revised Penal Code commentator Luis B. Reyes (18th edition, 2012), he described the nature of the crime of rebellion as a crime of the masses, of a multitude and a vast movement of men and a complex net of intrigues and plots. A handful of Maute group warriors spread widely over certain portions of Marawi City and those doing the acts described in the 5th whereas clause is clearly not such multitude and vast group of men.

2) the declaration referred to other reasons under the previous Proclamation of national emergency from the Davao City bombing in Feb 2016 which are not completely spelled out in this martial law Proclamation.

The 4th whereas clause reads : “part of the reasons for the issuance of Proclamation No. 55” means there are another set of reasons that are not spelled out in this Proclamation, what are they? Are they the acts enumerated in the 5th whereas clause? If we look for the connective word between the 4th and 5th whereas clause, it is the reference to the Maute group as the “same” Maute terrorist group and if we take on the implications of this reference, meaning the first effort under the first Proclamation actually failed since here is the same group again, doing the same thing that they are doing, but this time the Government response is different. Sen. Saguisag appears to be right in saying over ANC cable news channel that this martial law declaration is an admission of failure on the part of the government in stopping the Maute group the first time. The other reasons, including reasons for the failure of the original Proclamation, should have been clearly spelled out here now, justifying the martial law declaration.

WHY THIS MATTERS : Any citizen who may wish to question the sufficiency of the factual basis for the declaration of martial law will only have to look at the four corners of the Proclamation and point these out to the Supreme Court so that this Proclamation may be knocked down legally for lack of sufficient factual basis.

Just to be sure, however, let’s watch out for the President’s report to Congress as he may put forward other information, including perhaps classified intelligence information there justifying the martial law declaration before or within 48 hours from the issuance of the Proclamation and if we look at the date when he issued the Proclamation, straight from Russia, on 23 May 2017, his 48 hours should be up within today.